Second Consultation on Implementing the EU Remedies Directive

EXECUTIVE SUMMARY

This consultation document concerns the implementation of the new European Directive on Remedies in public procurement 1. This is the second of two consultations: this first consultation in August 2008 sought feedback on the approach to implementation; this consultation seeks feedback on the implementation itself, including draft legislation.

The new Directive amends the previous two EU Directives on Remedies, which currently apply to the public sector and to the utilities sectors respectively. The main changes surround three key topics:

i) the operation of a harmonised standstill period between contract award decision and contract award, to allow the decision to be challenged;

ii) the introduction of "ineffectiveness" and other special penalties as remedies for certain serious breaches of the procurement rules; and

iii) the introduction of the automatic suspension of procurement procedures where a procedure is challenged in court.

This Directive has already been adopted at European level and cannot be substantively changed in the implementation process. However, there are a number of optional elements in the new Directive, allowing Member States to choose between prescribed alternatives. The first consultation sought feedback on the optional elements and we are very grateful to respondents for their considered views.

The responses to the first consultation have informed the drafting of amendments to the existing regulation governing information to be provided to suppliers about contract award procedures and the standstill period (regulation 32) and revisions to Part 9 of the Scottish Regulations governing applications to the Court. This consultation seeks feedback on draft regulations and a number of outstanding questions relating to implementation of the new Directive. Stakeholders are invited to consider and comment on both the draft regulations and the outstanding questions. We will analyse the responses carefully and any decisions will take account of the evidence provided.

Part 1 of this document sets out the background to the new Directive and our plans for its transposition.

Part 2 of the document - an annotated transposition table - provides references to and commentary on draft regulations.

Part 3 of the document highlights the key issues for stakeholder consideration and feedback.

The Scottish Government welcomes input by 21 August 2009. Comments can be submitted using the online response form. The online form includes a Respondent Information Form which should also be completed.

If responding by post or e-mail, please quote the question number to which your comments relate as this will aid our analysis of the responses received. To ensure that we treat your response appropriately, please also complete and return the Respondent Information Form at Annex C.

This consultation, and all other Scottish Government consultation exercises, can be viewed online on the consultation web pages of the Scottish Government website at www.scotland.gov.uk/Consultations/Current. You can telephone Freephone 0800 77 1234 to find out where your nearest public internet access point is.

The Scottish Government now has an email alert system for consultations ( www.scotland.gov.uk/Consultations/seConsult). This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new consultations (including web links). SEconsult is designed to allow stakeholders to keep up to date with all Scottish Government consultation activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register.

Handling your response

If you ask for your response not to be published we will regard it as confidential, and we will treat it accordingly. All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

Next steps in the process

Where respondents have given permission for their response to be made public, these will be published on the Scottish Government consultation web pages by 25 September 2009. We will check all responses where agreement to publish has been given for any potentially defamatory material before logging them in the library or placing them on the website. You can make arrangements to view responses by contacting the Scottish Government Library on 0131 244 4552. Responses can be copied and sent to you, but a charge may be made for this service.

What happens next?

Following the closing date, all responses will be analysed and considered along with any other available evidence to help us to resolve the outstanding questions relating to implementation of the new Directive and to finalise the draft regulations. We aim to issue a report on this consultation process by 14 November 2009.

We intend to incorporate the new regulations 32, 47 and 48 in consolidated legislation - the Public Contracts (Scotland) Regulations 2009 and the Utilities Contracts (Scotland) Regulations 2009 - which will come into force by 20 December 2009.

Comments or complaints

If you have any comments about how this consultation exercise has been conducted, please send them to: